Part III - Contrary Substantial Evidence May Negate the Will Revocation Presumption

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Part III - Contrary Substantial Evidence May Negate the Will Revocation Presumption

By
Law Offices of David A. Shapiro
|October 23, 2013

We continue our blog on the Estate of Trikha, which is about a father who executed a
will three weeks before committing suicide. Satish Trikha's
will made provisions for all his children, including two children from a prior relationship. After Satish's death, the
will was never found. Under
Probate Code section 6124, there is a presumption that the testator (person who created a
will) destroyed the
will with the intent to revoke it where the testator was the last person in possession of the
will; the testator was competent until death, and neither the
will nor an original copy of the
will could be found after the testator's death.

Satish Jr., the son from the prior relationship, sought to probate a copy of the
will obtained from his father's lawyer. Since Satish Jr. have to first overcome the will revocation presumption, he introduced evidence to show that his father's current wife, Suchitra, was the first to gain access to Satish's belongings and had the ability and motive to destroy the will. Satish Jr. also introduced evidence to show it was his father's desire to provide for all his children. However, the trial court ruled in favor of Suchitra, stating that Satish Jr. did not provide sufficient evidence to convince the court that Suchitra did destroy the original will. Satish Jr. appealed.

Decision

The appellate court disagreed with the trial court's decision stating that Satish Jr. only had the burden to produce evidence. The burden of producing evidence pertains to the obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue. Thus, the presumption only exists "unless and until evidence is introduced which would support a finding of its nonexistence."

During trial, Satish Jr. introduced substantial evidence to show that Satish repeatedly expressed his desire to provide for all his children in his will. Additionally, three weeks before his death, Satish retained an attorney to draft a will that provided for all his children. The execution of the will that formalized his expressed desire to provide for all his children just three weeks before his suicide constitutes substantial evidence that he did not intend to revoke his will. Satish Jr. also provided substantial evidence to show that Suchitra had the motive and ability to destroy the will. This was also deemed by the appellate court to constitute as substantial evidence that Satish did not intend to revoke his will. As Satish Jr. was able to introduce substantial evidence to negate the preliminary presumption of revocation, then the revocation presumption at that point is deemed to have disappeared and the trial court was required to decide the matter based on the burden of proof. Here, Suchitra had the burden of proving that Satish deliberately destroyed his will.

The Court of Appeal, therefore, reversed the trial court's judgment and remanded it for a new trial consistent with the principles of the appellate court's opinion.

*This blog entry was not written by an Attorney and should not be construed as professional legal advice.

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